No. 01-02-01239-CR, No. 01-02-01240-CR
Opinion issued May 22, 2003 Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause Nos. 882167, 919665
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
Appellant, Gerald Jerome Anderson, was indicted for the felony offenses of capital murder and possession with intent to deliver a controlled substance. Appellant entered pleas of guilty for possession with intent to deliver a controlled substance and a reduced charge of aggravated kidnapping, a lesser included offense of capital murder, without an agreed recommendation with the State. After the completion of a pre-sentence investigation, the court assessed punishment at two life sentences, to run concurrently. In his sole point of error, appellant argues that the trial court abused its discretion by denying appellants request to withdraw his pleas of guilty. Background
On September 10, 2002, appellant was arraigned for the offense of capital murder and pled not guilty. A jury was empaneled, and the court began its voir dire. During a break in the voir-dire proceedings, the State moved to reduce the charge of capital murder to the lesser included offense of aggravated kidnapping and abandoned a punishment enhancement paragraph allegation, whereupon appellant changed his plea to guilty of aggravated kidnapping. At the same time, appellant pled guilty to possession with intent to deliver between four and 200 grams of cocaine, a controlled substance, and the State also abandoned that punishment enhancement paragraph. Both of appellants pleas of guilty were without an agreed recommendation with the State and contemplated sentencing by the trial court upon completion of a pre-sentence investigation report. The court admonished appellant that each of the offenses he pled guilty to were punishable from 5 years to 99 years or life in prison, with up to a $10,000 fine. The court orally admonished appellant that he had no plea bargain and that the entire range of punishment was available in both cases. Appellant stated that he wished to give up his right to a trial and that his pleas were voluntarily and freely given. In addition to the oral admonishments, appellant signed and initialed written admonishments acknowledging his rights and waiving them. The trial court accepted appellant's pleas of guilty, found that there was sufficient evidence to substantiate appellants guilt for the two offenses, ordered that a pre-sentence investigation report be prepared, and reset the cases for sentencing on November 14, 2002. On October 7, 2002, appellant filed a motion to withdraw his plea of guilty to aggravated kidnapping on the grounds that he (1) was unaware of the consequences of his plea and that he could receive up to 99 years in prison, (2) believed that the prosecutor would recommend probation, (3) was innocent, (4) was not offered the benefit of an agreed plea bargain, (5) was intimidated during unfavorable voir-dire proceedings, and (6) acted against the sound advice of his counsel. On the following day, the trial court denied appellants motion to withdraw his plea. On November 22, 2002, appellant re-urged his motion to withdraw his guilty plea to aggravated kidnapping. The trial court conducted a hearing, at which appellant testified that he was not thinking clearly when he pleaded guilty and that he did not know what the consequences of his plea would be. Appellant maintained his innocence and claimed that he believed that he would get probation if he pled guilty. The trial court found appellant's testimony totally lacking in credibility, again denied appellant's motion to withdraw his plea, and sentenced appellant to life in prison. The sentence was to run concurrently for both the aggravated kidnapping and possession-with-intent-to-deliver-cocaine offenses. Plea Withdrawal
In his sole point of error, appellant contends that the trial court abused its discretion when it denied appellant's motion to withdraw his guilty pleas. Appellant claims that he did not understand the implications of his pleas. We review a trial court's denial of a motion to withdraw a plea after a case is taken under advisement for abuse of discretion. Moreno v. State, 90 S.W.3d 887, 889 (Tex.App.-San Antonio 2002, no pet.). To show that the trial court abused its discretion when it refused to allow appellant to withdraw his plea, appellant must show that the trial court's ruling lies outside the zone of reasonable disagreement. See id. A defendant may withdraw his plea as a matter of right, without assigning a reason, until judgment is pronounced or the case is taken under advisement by the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979). If, however, a defendant desires to withdraw his guilty plea after the court has taken the case under advisement, withdrawal of the plea is within the sound discretion of the court. Id. After a trial court has admonished a defendant, received the plea and evidence, and passed the case for pre-sentence investigation, the case has been taken under advisement. Rivera v. State, 952 S.W.2d 34, 35 (Tex.App.-San Antonio 1997, no pet.). We hold that, because the trial court had taken appellant's case under advisement and had reset the case for the preparation of a pre-sentence investigation report, appellant was not entitled to withdraw his plea of guilty to aggravated kidnapping as a matter of right. We further hold that the court did not abuse its discretion by refusing to allow appellant to withdraw his plea of guilty to aggravated kidnapping because the record reflects that he was fully admonished about the consequences of his guilty pleas. Finally, we hold that, because appellant never requested to withdraw his plea of guilty to possession with intent to deliver a controlled substance, he waived that issue for failure to present it to the trial court for a ruling. See Tex.R.App.P. 33.1(a). We overrule appellant's sole point of error. Conclusion
We affirm the judgments of the trial court. Elsa Alcala, Justice